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Legal Technicians Across the US

At this time, there are no licensed LLLTs in the State of Washington. Despite that, approximately a dozen states are considering similar programs. Representatives from the WSBA have met or communicated with most or all of these states.[1] A handful of states have conducted preliminary research, including task force reports, on the viability of a LLLT program locally.

Some states are wisely monitoring the status of the LLLT program and its implementation in Washington, before following suit or creating their own. The DC Bar characterized Washington’s LLLT program as “an attempt to regulate the provision of legal services by highly trained paraprofessionals while promoting access to justice for those who have legal needs but do not require all the skills of an attorney.” It is a program they “will be watching.”[2] In North Carolina, the bar is going a step further. They want to “follow its progress to determine whether it increases access to justice while protecting the public,”[3] before they embrace the program. In 2013, the Indiana State Bar Association Professional Legal Education, Admission, and Development Section issued a report that included a review of the option of special licensing. “The section recommended against moving forward with legal technicians at this time but left the door open for future consideration by advising the state bar to monitor the success of such programs in other jurisdictions.”[4]

In Rhode Island, the president of the bar association, Robert Weisberger, opined that the WSBA’s claims that LLLTs would reduce UPL and improve access to justice required statistical analysis. He voiced the following questions, “how do they know that those generators of forms and advice who are engaged in the unauthorized practice of law would take the time and spend the money to obtain such a license, rather than continuing to attempt to fly under the radar? How did they know that otherwise self-represented litigants would pay for the services of a limited license legal technician when they were not willing to pay for the services of an attorney? And, how do we know what the discount rate would be that would attract otherwise pro se litigants to limited license legal technicians?”[5] Mr. Weisberger asked WSBA executives whether they had considered limited scope representation as a potential solution to the justice gap. “To my amazement, they said they were just studying the unbundling of legal services now. It seemed to me they had placed the cart before the horse.”[6]

Other states have forged ahead absent any evidence suggesting the LLLT program will actually be successful, let alone increase access to justice. In Connecticut, the bar association’s Task Force on the Future of Legal Education and Standards of Admission recommended, “non-lawyers be permitted to offer some basic legal services to the public.”[7] Interestingly, in Connecticut the task force recommended that licensed non-lawyers have a bachelor’s degree, with the idea they would be “more than a paralegal but less than a JD.”[8] In New Mexico, the director of the Disciplinary Board suggested that to wait on a LLLT program was reactive and that the bar should be proactive when it comes to improving access to justice.[9] Similarly, in Mississippi, the president of the bar stated that the legal system is changing and with or without the LLLT program the bar should be “at the forefront of change, not reacting to it.”[10]

States such as New York, Oregon, and California have assembled task forces, which have already written reports to bar leadership on the LLLT concept. In Oregon, the Legal Technicians Task Force issued its Final Report to the Board of Governors in February 2015.[11] That task force recommended the bar “consider the general concept of a limited license for legal technicians as one component of the BOG’s overall strategy for increasing access to justice.”[12] Interestingly, the report notes, “not all Task Force members, concur with this recommendation.”[13] The report references a 1992 report to the Board of Governors, called the “Legal Technician Task Force Report.” That 1992 report notes that at that time, California, Illinois, Maryland, Minnesota, Missouri, Washington, Wisconsin, and Ontario were considering whether “nonlawyers should be licensed to perform limited legal services.”[14] In California, the issue was being studied in the late 1980’s, with a comprehensive report to the board in 1990. It recommended licensing legal technicians in the areas of bankruptcy, family law, and landlord/tenant. The pilot program suggested by the report is very similar to the program recently implemented in Washington. However, the Board of Governors of the California State Bar voted against establishing a pilot program for the licensing of “nonlawyer practitioners.”[15] In the 1990’s the matter was also considered by the California legislature.

Oregon’s 1992 report recommended that the Oregon State Bar implement a “Limited Law Advisor (LLA)” program. The LLA program had no minimum educational component and anyone over 18 years of age could qualify if they were “of good moral character and fit to be a LLA.” Only a written examination was recommended in order to make the license affordable. LLAs would be permitted to advise consumers in landlord/tenant law, name changes, wills, divorces, chapter 7 bankruptcies, and powers of attorney for health care.[16] More practice areas were to be permitted after 1996. The standard of care was not the same as the standard for lawyers. Like the LLLT program, LLAs would be required to have clients sign a contract that acknowledged that the LLA was not a lawyer. Despite these recommendations, the task force did not determine whether “sufficient justification exists to establish a procedure for the licensing of LLAs.”[17]

In the 2015 report, the Oregon task force based the need for a legal technician program on funding cuts to courthouse facilitators and legal aid. The report states that the number of people now unwilling or unable to pay lawyers has increased since the 1992 report. The Oregon task force considers the Washington program to be comprehensive and well thought-out.[18] Interestingly, the Oregon task force notes that its belief that people do not seek out a lawyer because of cost was based “primarily on anecdotal evidence.”[19] This is despite the fact that studies have been conducted elsewhere finding otherwise.[20] The 2015 report states that 86% of family law litigants in Oregon are self-represented and that number was 38% when the 1992 report was written. The Oregon task force determined that a program similar to the Washington LLLT program “might not allow [LLLTs] to provide services to the target population at a cost lower than typical lawyer fees” and also determined a legal technician program might have a negative impact on new lawyers.[21] The 2015 report recommended starting a legal technician program in family law, but that technicians should not be able to provide legal advice, or apply the law to the client’s specific case, or offer legal opinions. The task force also recommend technicians for use in landlord/tenant and small claims, but not estate planning.[22]

California’s Civil Justice Strategies Task Force submitted its Report and Recommendations to the bar in 2015.[23] The charge of the task force was much broader than a LLLT program. “The charge of the task force was to analyze the reasons for the existing ‘justice gap.’”[24]California’s report is divided into three sections. The “Now Group” provided a review of the existing access to justice services. The “New Group” focused on potential innovations from other jurisdictions that might help to close the justice gap. Lastly, the “Law School Debt Group” explored how student loan debt affects access to justice.

The “New Group” studied the Washington LLLT program. The group determined that none of their recommendations alone would close the justice gap. However, they recommended the bar “should study the design of a pilot program, in one subject matter area” with early input from the California Supreme Court.[25] The group recommended family law, landlord/tenant, or consumer debt cases as potential initial practice areas. The California group felt the Washington LLLT requirements were too “rigid and perhaps cost prohibitive.” However, the group did believe an examination was necessary before licensing.[26]

The New York City Bar’s Committee on Professional Responsibility issued a report in 2013 called “Narrowing the ‘Justice Gap’: Roles for Nonlawyer Practitioners.”[27] Unlike California and Oregon, New York relied on data it had collected regarding the justice gap through its Task Force to Expand Access to Civil Legal Services in New York.[28] That Task Force issues annual reports on the number of low-income New Yorkers who are unrepresented in legal matters. Based on this unmet need and efforts being undertaken in other jurisdictions, the Committee recommended (1) recognizing a role for “courtroom aides” in judicial and administrative hearings and (2) recognizing a role for “legal technicians” outside judicial and administrative hearings.[29] It specifically recommended, “New York adopt some form of Washington State’s legal technician model for nonlawyer assistance, performed for compensation.”[30] The Committee particularly endorsed Washington’s mandatory disclosures required by legal technicians to their clients.

For its part, the American Bar Association (ABA) Task Force on the Future of Legal Education concluded that there should be broader delivery of “law-related” services. “State supreme courts, state bar associations, and admitting authorities should devise new or improved frameworks for licensing providers of legal services. This should include licensing persons other than holders of a J.D. to deliver limited legal services, and authorizing bar admission for people whose preparation may be other than the traditional four-years of college plus three-years of classroom based law school education.”[31]

For an overview of how the LLLT program came about in Washington, see my previous post.